Love As a Matter of Contract?

With Americans spending more time at work, and with large numbers of women joining the workforce since World War II, the workplace has become a principal place where men and women seek and find their romantic partners, whether for a fling or a long-term relationship ending in marriage. Indeed, by some reports, nearly 60% of employees acknowledge engaging in a workplace romance. At the same time, however, American employers have been tempted to cultivate a near zero-tolerance culture for workplace romance given the development of sexual harassment law and the explosion of discrimination lawsuits alleging harassment. In many ways, it is impracticable for employers to maintain an outright ban on workplace romance: love will find a way, and employees may well hide relationships, which could end up being more problematic for the employer and just as likely to lead to an eventual lawsuit.

Legal claims against employers can arise out of a number of romantic (or not-so-romantic) scenarios. For example:

• An employee asserts a claim against an employer after his or her romantic relationship with a supervisor or co-worker ends, typically claiming that the relationship was coerced — a claim of quid pro quo harassment.
• An employee continues to make sexual advances towards a former partner in the workplace after the relationship ends. Here, courts have often found that a hostile work environment claim can prevail.
• An employee claims that a supervisor retaliated against him or her following the termination of a relationship. Interestingly enough, some courts have found that these types of claims are not viable because they are predicated on the termination of a relationship, not the plaintiff's gender.
• An employee claims that he or she has suffered an adverse employment action because a supervisor favored another employee with whom he or she had a romantic relationship. Like the retaliation claims previously discussed, courts have found that such “paramour” claims cannot succeed because they are based on the alleged favoritism, not the gender of the plaintiff. Note, however, that the Equal Employment Opportunity Commission has issued guidance to the effect that sexual favoritism can rise to the level of an actionable claim.
• A supervisor retaliates against an employee for complaining that the supervisor favors another employee with whom he or she has a romantic relationship. Beware: while, as noted, the employee may not have a claim on the basis of the favoritism itself, courts have repeatedly held that retaliation on the basis of a good-faith belief that discrimination is occurring is actionable.

Warding Off Claims

Employers have attempted a number of approaches to warding off sexual harassment claims on the basis of workplace romance. As noted, some employers adopt an outright prohibition on workplace romance. This “head-in-the-sand” approach is probably unwise: It is unrealistic, demoralizing to employees, and even potentially unlawful. (For example, some states have out-of-work activity statutes on the books, which generally prohibit employers from taking corrective or adverse action against employees for what they do on their own time. Some courts, too, have found that employers commit an actionable invasion of privacy when they penalize employees for dating.) More commonly, employers adopt a policy prohibiting non-platonic relationships between supervisors and their subordinates. While this approach may make more sense than a total ban, it is still likely to have a demoralizing effect and can still expose the employer to potential litigation.

The U.S. Supreme Court has repeatedly held that, in order for a sexual advance to be actionable, it must be “unwelcome.” Translation: if a workplace romance is entirely consensual, a spurned lover will not be able to claim a violation of the law after the fact. In view of the near inevitability of non-platonic workplace relationships and the danger of liability stemming from those relationships, some employers have thus attempted to have employees sign “consensual relationship agreements” or “love contracts,” which affirm the consensual nature of the relationship. Such agreements can also include provisions in which the two employees involved in relationship acknowledge their understanding that the relationship will have no impact on employment decisions, agree to abide by the employer's anti-harassment policies, and agree not to engage in inappropriate sexual conduct in the workplace. “Love contracts” are of questionable value, however. A love contract would never act as an absolute prospective bar to employer liability; at most, it would amount to mere evidence in a lawsuit that workplace relationship was, in fact, consensual.

Conclusion

The more measured, and the better, practice is to allow workplace dating, at the same time working with employees to make appropriate accommodations and to clearly communicate the employer's intolerance of sexual harassment. An effective accommodation could include, for example, transfer of one or both of the employees (although it is best to involve employees in any such decision). Above all, the best preventive medicine is a thorough, well-publicized, effective, consistently enforced anti-harassment policy. Under U.S. Supreme Court authority, an employer has an affirmative defense to a sexual harassment claim if the employer promulgated an effective anti-harassment policy that an allegedly aggrieved employee failed to take advantage of. If an employer maintains and promulgates such a policy, and effectively addresses employee complaints under that policy, the employer can stave off claims that it tolerates sexual harassment in the workplace – even when those claims emerge from workplace romances of which the employer is aware.

With Americans spending more time at work, and with large numbers of women joining the workforce since World War II, the workplace has become a principal place where men and women seek and find their romantic partners, whether for a fling or a long-term relationship ending in marriage. Indeed, by some reports, nearly 60% of employees acknowledge engaging in a workplace romance. At the same time, however, American employers have been tempted to cultivate a near zero-tolerance culture for workplace romance given the development of sexual harassment law and the explosion of discrimination lawsuits alleging harassment. In many ways, it is impracticable for employers to maintain an outright ban on workplace romance: love will find a way, and employees may well hide relationships, which could end up being more problematic for the employer and just as likely to lead to an eventual lawsuit.

Legal claims against employers can arise out of a number of romantic (or not-so-romantic) scenarios. For example:

• An employee asserts a claim against an employer after his or her romantic relationship with a supervisor or co-worker ends, typically claiming that the relationship was coerced — a claim of quid pro quo harassment.
• An employee continues to make sexual advances towards a former partner in the workplace after the relationship ends. Here, courts have often found that a hostile work environment claim can prevail.
• An employee claims that a supervisor retaliated against him or her following the termination of a relationship. Interestingly enough, some courts have found that these types of claims are not viable because they are predicated on the termination of a relationship, not the plaintiff's gender.
• An employee claims that he or she has suffered an adverse employment action because a supervisor favored another employee with whom he or she had a romantic relationship. Like the retaliation claims previously discussed, courts have found that such “paramour” claims cannot succeed because they are based on the alleged favoritism, not the gender of the plaintiff. Note, however, that the Equal Employment Opportunity Commission has issued guidance to the effect that sexual favoritism can rise to the level of an actionable claim.
• A supervisor retaliates against an employee for complaining that the supervisor favors another employee with whom he or she has a romantic relationship. Beware: while, as noted, the employee may not have a claim on the basis of the favoritism itself, courts have repeatedly held that retaliation on the basis of a good-faith belief that discrimination is occurring is actionable.

Warding Off Claims

Employers have attempted a number of approaches to warding off sexual harassment claims on the basis of workplace romance. As noted, some employers adopt an outright prohibition on workplace romance. This “head-in-the-sand” approach is probably unwise: It is unrealistic, demoralizing to employees, and even potentially unlawful. (For example, some states have out-of-work activity statutes on the books, which generally prohibit employers from taking corrective or adverse action against employees for what they do on their own time. Some courts, too, have found that employers commit an actionable invasion of privacy when they penalize employees for dating.) More commonly, employers adopt a policy prohibiting non-platonic relationships between supervisors and their subordinates. While this approach may make more sense than a total ban, it is still likely to have a demoralizing effect and can still expose the employer to potential litigation.

The U.S. Supreme Court has repeatedly held that, in order for a sexual advance to be actionable, it must be “unwelcome.” Translation: if a workplace romance is entirely consensual, a spurned lover will not be able to claim a violation of the law after the fact. In view of the near inevitability of non-platonic workplace relationships and the danger of liability stemming from those relationships, some employers have thus attempted to have employees sign “consensual relationship agreements” or “love contracts,” which affirm the consensual nature of the relationship. Such agreements can also include provisions in which the two employees involved in relationship acknowledge their understanding that the relationship will have no impact on employment decisions, agree to abide by the employer's anti-harassment policies, and agree not to engage in inappropriate sexual conduct in the workplace. “Love contracts” are of questionable value, however. A love contract would never act as an absolute prospective bar to employer liability; at most, it would amount to mere evidence in a lawsuit that workplace relationship was, in fact, consensual.

Conclusion

The more measured, and the better, practice is to allow workplace dating, at the same time working with employees to make appropriate accommodations and to clearly communicate the employer's intolerance of sexual harassment. An effective accommodation could include, for example, transfer of one or both of the employees (although it is best to involve employees in any such decision). Above all, the best preventive medicine is a thorough, well-publicized, effective, consistently enforced anti-harassment policy. Under U.S. Supreme Court authority, an employer has an affirmative defense to a sexual harassment claim if the employer promulgated an effective anti-harassment policy that an allegedly aggrieved employee failed to take advantage of. If an employer maintains and promulgates such a policy, and effectively addresses employee complaints under that policy, the employer can stave off claims that it tolerates sexual harassment in the workplace – even when those claims emerge from workplace romances of which the employer is aware.